Official Assignee v Mathiesen
[2018] NZHC 1418
•14 June 2018
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE
CIV-2016-476-000049 [2018] NZHC 1418
BETWEEN THE OFFICIAL ASSIGNEE
Applicant
AND
GABRIELLE PAULETTE MATHIESEN
First Respondent
AND
GORDON WALLACE CAMERON MCNAB
Second Respondent
Hearing: 13 June 2018 Appearances:
G Slevin for the Applicant Second Respondent in person
Judgment:
14 June 2018
ORAL JUDGMENT OF NATION J
[1] In a judgment of 30 April 2018, Dunningham J made a number of orders concerning the first and second respondents.1 The orders sought were to enable the bailiff of the Court to effect the sale of a property at 282 Timaru-Pareora Highway, Timaru (the property), in accordance with previous judgments of the High Court.
[2] Gendall J made orders on 13 December 2017 requiring the respondents to give vacant possession of the property so it could be sold in order for the Official Assignee to distribute the proceeds to Mrs Mathiesen’s creditors.2
1 The Official Assignee v Mathiesen [2018] NZHC 843.
2 Official Assignee v Mathiesen [2017] NZHC 3108.
THE OFFICIAL ASSIGNEE v MATHIESEN & MCNAB [2018] NZHC 1418 [14 June 2018]
[3] Dunningham J was satisfied the respondents, that is Mr McNab and Mrs Mathiesen, were in contempt of Court. She directed arrest warrants were to issue in respect of both Mr McNab and Mrs Mathiesen. The arrest warrants required both respondents to be brought before the High Court to answer the warrants. Mrs Mathiesen, Mr McNab tells me, is currently in Canberra however Mr McNab was informed of the warrant that had been issued and, through discussions with the registrar in Timaru, arranged to appear voluntarily in the High Court in Timaru and a hearing was arranged for 4.00 pm today for that purpose.
[4] Arrangements were made so that the High Court could convene. I was required to preside over the hearing. Mr McNab appeared in Timaru but appeared in Court by audiovisual link with me. Mr Slevin appeared for the Official Assignee.
[5] At the commencement of the hearing, Mr McNab made the point that he was not appearing voluntarily, he was appearing really under the threat of the arrest warrant. In fact, he asked for the arrest warrant to be formally served on him. I agreed to this and so the hearing proceeded on the basis that the warrant had been served and he was being detained in Court pursuant to that warrant.
[6] The purpose of the hearing today was to determine what, if anything, I should do about the fact he had been found to be in contempt of orders that had been previously made by the High Court.
[7] At the commencement of the hearing, Mr McNab asked me to identify myself and then argued that I should recuse myself. I dealt with that request in a minute dictated earlier. We then carried on with the hearing.
[8] Mr McNab had a number of submissions to make. He again asked me to recuse myself and gave a number of reasons, primarily going back to the fact that I had failed to deal with a protest to jurisdiction that he had made more than a year ago but, in the course of making his submissions, he referred to the fact that Mr Slevin, who appears for the Official Assignee, had at some stage in the past been an employee of the firm where I had been. He also referred to some involvement of a firm in Timaru where my son happens to be working as a solicitor. I have no familiarity with the matters
that he raised in this regard. The fact that Mr Slevin was once a solicitor at Wynn Williams and Co. a number of years ago is not a reason for my recusing myself from the responsibility I have as a Judge of the High Court to deal with the matter that is before me. Again, having listened to Mr McNab’s submissions, it would be inappropriate for me to recuse myself and I do not do so. Mr McNab said that, because I should recuse myself, the hearing should not proceed any further. I reject that submission. It has been necessary for the hearing to continue for me to deal with the matter which is properly before me.
[9] Mr McNab then made a number of submissions about the unlawfulness of the proceedings that had resulted in the orders that had been made that he had been held to be in contempt of. He said the original proceedings against Mrs Mathiesen were unlawful and what had happened as a result of those proceedings was invalid. He suggested that the form of the warrant which he was appearing on was a general warrant and, in that sense, should be treated as invalid. I reject all of those submissions.
[10] I told Mr McNab that he was here for me to be considering what I should do in relation to the contempt that he had already been found to be guilty of - his failure to comply with the Court orders that had required him to vacate the property in February of this year.
[11] I asked Mr Slevin in his submissions to indicate how long it would need for the Official Assignee to take the steps that were required to initiate the sale process which the Court has directed has to now follow on. Mr Slevin told me that he expected the appropriate steps, with regard to securing the property, removing chattels that were there and putting them in storage, could be made promptly and he expected that it could perhaps be done within a day but he could not give me a complete assurance about that.
[12] I asked Mr McNab to then respond to that information and to tell me what, if anything, he was going to do about complying with the orders that had been made. In response to that, he reiterated that he considered the judgments which had led to those orders being made were unlawful and invalid and it was on that basis he argued that
the Court should not enforce them. He also argued that he had a responsibility as a trustee to effectively refuse to comply with the Court orders because of his submission that the original judgment on which they had been made was invalid and unlawful. Through these submissions, Mr McNab was going back to deal with matters that have been historically before the Court for a number of years and that have been considered by different Judges, in different settings, on a number of occasions. The Court has been clear as to what must happen now and that is that this property has to be sold and orders have been made to give effect to that.
[13] What Mr McNab has said in Court this afternoon has confirmed that he is not willing to comply with the orders that have been made and is not in any way indicating that he will abide by them. In these circumstances, I have no alternative but to ensure that he is somewhere where he cannot interfere with what needs to happen and that means that, on the contempts that he has been found guilty of already, he must be sentenced to imprisonment.
[14] At this stage, my intention is that sentence should be just for the shortest possible period to enable the steps to be taken by the sheriff to ensure that the sale process can begin.
[15] The order I make following the arrest of Mr McNab for the contempt he has been found guilty of is that he be sentenced to imprisonment and, at this stage, that sentence is to continue only until Monday 18 June 2018. Mr McNab is to be brought before the Court at 10.00 am on 18 June 2018 when the Court will consider then what further orders, if necessary, need to be made as a result of the contempt that he has already been found to be guilty of.
[16] At this stage, I order that, pursuant to r 17.85 of the High Court Rules, Mr McNab is to serve a sentence of imprisonment until 10.00 am on 18 June 2018 when he is to be brought before the Court. Again, that appearance can be in the High Court at Timaru. It will be an appearance in the High Court that will be in open Court as this appearance was. The Court will then consider what, if any, further steps have to be taken as a result of the original contempt.
[17]A warrant is now issuing for Mr McNab to begin that sentence.
[18]That is my judgment.
Solicitors:
Mr G Slevin
Copy to: The Respondents.
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